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MIGRATION - Review of decision of the Refugee Review Tribunal - application for protection visa - where Tribunal relied on linguistic report to determine applicant's country of origin - whether this evidence should be preferred over evidence of migration agent - whether the linguistic report was wrong - where applicant asked for copy of report and particulars of qualifications of the analyst - whether Tribunal is under a duty to make further enquiries about the reliability of the report - whether the applicant was denied procedural fairness by not being provided with a copy of the tape used by the analyst - whether applicant was denied procedural fairness by not being provided with a copy of the analyst's report or details of analyst's qualifications - whether the Tribunal fell into jurisdictional error and failed to accord the applicant natural justice - whether non-observance of the requirement could not possibly have produced a different result.

WAIO v Minister for Immigration [2003] FMCA 114 (9 April 2003)

WAIO v Minister for Immigration [2003] FMCA 114 (9 April 2003)
Last Updated: 17 April 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAIO v MINISTER FOR IMMIGRATION
[2003] FMCA 114



MIGRATION - Review of decision of the Refugee Review Tribunal - application for protection visa - where Tribunal relied on linguistic report to determine applicant's country of origin - whether this evidence should be preferred over evidence of migration agent - whether the linguistic report was wrong - where applicant asked for copy of report and particulars of qualifications of the analyst - whether Tribunal is under a duty to make further enquiries about the reliability of the report - whether the applicant was denied procedural fairness by not being provided with a copy of the tape used by the analyst - whether applicant was denied procedural fairness by not being provided with a copy of the analyst's report or details of analyst's qualifications - whether the Tribunal fell into jurisdictional error and failed to accord the applicant natural justice - whether non-observance of the requirement could not possibly have produced a different result.



Migration Act 1958 (Cth), ss.424A, 474

Eades, Fraser, Siegel, McNamara and Baker, A Linguistic Identification in the Determination of Nationality: A Preliminary Report, February 2003.

Karar Hussain v Minister for Immigration [2002] FCA 793

SGFB v Minister for Immigration [2002] FCAFC 422

Re Minister for Immigration v Al Shamry (2001) 110 FCR 27

Curacel International Pty Ltd CAN 058 691 571 v Secretary, Department of Health And Aged Care [2002] FMCA 15

R v Reeves (1994) 121 FLR 393

Jago v District Court (NSW) (1989) 168 CLR 23

Barton v The Queen (1980) 147 CLR 75

Holmden v Bitar (1987) 47 SASR 509

R v Lord [1983] Crim LR 191

WAID v Minister for Immigration [2003] FCA 220

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 187 ALR 117

NAFF of 2002 v Minister for Immigration [2003] FCAFC 52

Re Minister for Immigration; Ex parte Lam (2003) 195 ALR 502

Odhiambo v Minister for Immigration [2001] FCA 1092

Martizi v Minister for Immigration [2001] FCA 1112

NACC v Minister for Immigration [2002] FCA 333

Azzi v Minister for Immigration [2002] FCA 24

Applicant:
WAIO



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ 218 0f 2002



Delivered on:


9 April 2003



Delivered at:


Sydney



Hearing date:


18 March 2003



Judgment of:


Raphael FM



REPRESENTATION

Counsel for the Applicant:


Dr J Cameron



Counsel for the Respondent:


Mr J Allanson



Solicitors for the Respondent:


Blake Dawson Waldron Lawyers



ORDERS

(1) The Court declares the decision of the Tribunal to be invalid.

(2) The matter to be referred back to the Tribunal, differently constituted, to be considered according to law.

(3) The respondent, not less than 30 days prior to the Tribunal hearing, to provide the applicant with a copy of the tape sent to Eqvator and also provide the applicant with details of the qualifications of the analyst who provided the report upon which the Tribunal relied.

(4) The respondent to pay the applicant's costs assessed in the sum of $4,250.00 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH


WZ 218 of 2002

WAIO


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. In this matter the applicant claims to be a citizen of and formerly resident in Afghanistan. He arrived in Australia on 7 March 2001. On 26 July 2001 he lodged an application for a protection (Class XA) visa. On 27 March 2002 a delegate of the Minister refused to grant the protection visa and on 5 April 2002 the applicant applied to the RRT for review of that decision. The Tribunal conducted a review. Hearings were held on 4 and 18 June 2002. The Tribunal made its decision on 21 August 2002 which affirmed that of the delegate not to grant a protection visa. The applicant seeks review of the Tribunal's decision.

2. The applicant claimed that he was an Hazara Shi'a who lived in the district of Jaghuri in the Province of Ghazni in Afghanistan. He told the Tribunal that he was a shepherd who had worked for his family, all of whom remained in Afghanistan. He speaks Dari and was educated for one year at the Mosque in Morghdolna. In a statement attached to his application for a protection visa the applicant described his village and the situation at his home. He explained that the Taliban had come to his area about three years prior to his arriving in Australia. They had first entered a village nearby where his uncle and his cousin had been murdered and when his family received news of the approach of the Taliban he was hidden. Eventually he was smuggled out of the country and made his way to Australia.

3. A tape of the applicant's first interview was made and sent to a language analysis laboratory known as "Eqvator". The results of that analysis are found at [CB 1-2]. It notes that the applicant speaks Dari and his dialect is called Hazarigi. It notes that the dialect is spoken in central Afghanistan but also in Pakistan and Iran. It notes that his dialect is spoken in Quetta Region of Pakistan. The analysis gives some examples of words which the applicant uses but does not say what the significance of those words or the manner in which they are spoken is. In a three lined paragraph the analysis notes that the applicant uses many Hazarigi words, refers to his pronunciation as being common in Hazarigi and him using the Hazarigi present tense verb prefix "MO". The analysis goes on to note that the applicant pronounced some words with an Urdu accent and gives examples. It also noted that he used the Urdu word "ALO". The analyses states:

"Urdu is not spoken in Afghanistan."

4. The analysis notes that the applicant uses the English word "double" and states that the word is not used in Afghan Dari but is used commonly in Pakistan. The analysis then ends with this sentence:

&qu;
ot;The applicant's choice of words and his pronunciation show English and Urdu influences. This gives a clear indication that his language is Pakistani. His mother tongue is Dari."

On the second page of the analysis there is a "tick a box" which states:

"The dialect/language variant in the text/tape recording may with considerable certainty be said to originate from Pakistan. The Quetta Region."

5. The Tribunal sought to test the applicant's story. It did this by questioning him about the events that he had narrated. It also asked him geographical questions about the area in which he claimed to have lived. At [CB 134-136] the Tribunal deals with the language analysis. At [136] it states:

"At the second Tribunal hearing held on 18 June 2002 the Tribunal asked the applicant's migration agent to elaborate on and explain her statements in her submissions of 03/06/02 and 17/06/02 viz:

I have dealt with many individuals from Afghanistan and Pakistan and I am fluent in Dari and I certainly haven't found [the applicant's] accent to be from Pakistan; and ... even when I talk to the applicant, despite the fact that I speak his language, still I have problem getting my points across to him.

The applicant's migration agent told the Tribunal that she was a Dari speaking person who was born in Iran. She repeated her statement that she had dealt with many people from Pakistan and Afghanistan and that she "knew" accents. The Tribunal reminded the applicant's migration agent of her submission to the Tribunal dated 03/06/02, in which she stated that the applicant had been able to substantiate his claims by speaking Dari in his departmental interview using a Dari interpreter, the language used by Afghani Hazaras. The applicant's migration agent acknowledged that people other than those born in Afghanistan do speak Dari. The Tribunal read the applicant the relevant parts of a DIMIA submission to the Tribunal dated November 2001, which related to the subject of the qualifications of those undertaking linguistic analyses and included a statement from Eqvator."

6. These matters were referred to in the Tribunal's discussion of the applicant's claims. In its findings and reasons at [CB 145] it says:

"In a submission to the Tribunal dated 03/06/02, the applicant's migration agent stated that the findings of the Eqvator analysis "should not be given any weight", and there is a clear implication that her opinions and linguistic knowledge and experience (where she states that she "certainly hasn't found [the applicant's] accent to be Pakistani) should be preferred. However, in the light of her acknowledgment to the Tribunal that she was an Iranian born Dari speaking person and that people other than those born in Afghanistan spoke the Dari language and (contrary to the implication in her written submission), speaking Dari was therefore not determinative of a person's country of origin, argued no weight at all to her opinions. Whilst I acknowledge that the Eqvator linguistic analysis would not of itself be conclusive evidence of the applicant's country of origin, I note that the Eqvator conclusion that the applicant's dialect/language originates in the Quetta region of Pakistan to be strongly worded and based on compelling evidence (such as using an Urdu accent when pronouncing significant words such as Afghanistan and Jaguri; and the use of Urdu words which are not used in Afghanistan) and I am satisfied that a person who was born and raised in Afghanistan, and had purportedly lived all of his life in the same village (and had never been beyond it other than to travel to Australia), would not pronounce the name of his own country with a foreign (Urdu) accent. I therefore give considerable weight to the linguistic expert's opinion that the applicant's dialect/language derives from the Quetta Region in Pakistan."

7. The applicant who was represented Pro Bono in these proceedings by Dr J Cameron produced to the court a paper entitled A Linguistic Identification in the Determination of Nationality: A Preliminary Report by Eades, Fraser, Siegel, McNamara and Baker. The authors are all academics in departments of languages at the Universities of Hawaii, New England and Melbourne. They argue at 2.2.1 that linguists believe that:

* A person's nationality cannot always be determined by the language he or she speaks, and

* A few key words and their pronunciation normally cannot reveal a person's nationality or ethnicity.

They point out national borders do not always coincide with linguistic borders and that words from one language can spread to another. The report examines the use of linguistic analysis in migration decision making in Australia. It appears to be an important piece of academic research on a subject which has excited much interest and some concern.

8. The use of language analysis was known to those advising the applicant at the time of his first interview. On 16 August 2001 a letter was written to the department requesting certain information about any analysis that had been undertaken including:

a) The source of the linguistic analysis, including full details of the qualifications and any relevant background of the person(s) who prepared the report; and

b) Full findings and/or conclusions of the report.

An FOI application was also made but the advisers were informed that the department would not hold up its initial decision in respect of the applicant pending this request being dealt with. On 1 September 2001 the advisers wrote to the department noting that a linguistic analysis had been conducted and that:

"The findings, as we comprehend, are to the effect that "perhaps" the applicant has resided in Pakistan for some time but most probably lived in Afghanistan."

The letter went on to say:

"We note that despite requests, we have not been provided with a copy of either the materials provided to the company which performed the linguistic analysis, nor a copy of the documentation containing the conclusions of the said report."

The letter went on to give a general critique of the report although it is accepted that it had not seen the document. The critique was apparently generic for that class of applicants for whom the advisers acted being persons who claimed to be Afghani but were being analysed as being Pakistani.

9. The delegate made his decision, which is found at [CB 75-80]. The delegate utilised the evidence of the linguistic report to come to the conclusion that the applicant was not an Afghani but was in fact from Pakistan, Quetta region and was thus not in need of protection from Australia.

10. I was advised by counsel for the respondent that the respondent was unable to give me an assurance that the language analysis report found at [CB 1-2] was provided to the applicant prior to the hearing by the Tribunal. Obviously, its conclusions were known to the applicant because they are found in the decision of the delegate. They were referred to by the applicant's adviser in writing and orally. It is also accepted by the respondent that neither the particulars of the qualifications of the analyst and details of the methodology used nor the material analysed (the tape) were ever provided.

11. At the commencement of the proceedings before me the applicant submitted an amended Grounds of Review. These were:

(1) That the Tribunal fell into jurisdictional error and acted without jurisdiction in affirming the refusal of a protection visa when in preferring the evidence of the Eqvator analyst to that of the applicant's migration agent it failed:

1.1 to enquire into the qualifications of the analyst and;

1.2 to meet the applicant's request to be provided with details of those qualifications; and

1.3 to enquire into the methodology of the analyst in reaching his/her conclusions; and

1.4 to provide the applicant as requested with details of the methodology employed; and

1.5 to check to the analyst's claim that Urdu is not spoken in Afghanistan.

The applicant argued that these matters constituted a failure to provide the applicant with procedural fairness and the reliance upon the report constituted a decision made outside the jurisdiction of the Tribunal.

12. The applicant argues that there are two distinct failures to provide procedural fairness to him in respect of the treatment of the linguistic report. Firstly, he argues that he was never provided with the particulars which he requested about the report. It cannot be said that every failure to provide particulars of a piece of evidence upon which a delegate or the Tribunal proposes to rely constitutes a failure to provide an applicant natural justice. But if the evidence is relied upon and is significant then one must examine what the particulars requested are and whether or not, if they were provided, they might lead to a finding that:

"The analyst drew from the recording upon which the report was based matters which the analyst was not entitled to draw or which could not rationally have drawn from listening to that recording."

(Karar Hussain v Minister for Immigration [2002] FCA 793 at [31]).

13. Hussain was a case in which similar findings to those made in this case were made by the analyst (see [30]) but where the report was referred to the applicant for his comments and the Tribunal itself made enquiries of the supplier of the report as to the particular analyst's qualifications. The approach taken by Mansfield J to the question of the linguistic analyst was affirmed in the appeal, sub nom SGFB v Minister for Immigration [2002] FCAFC 422 at [23].

14. Although Mansfield J's decision was one made under the old s.476 of the Migration Act 1958 (Cth) ("the Migration Act), the point which he appears to be making is that there would be a jurisdictional error if the Tribunal relied on a report which was based upon matters on which the analyst was not entitled to draw or which he could not rationally have drawn from listening to the recording. To make an obvious point, an analyst whose qualifications are in Gaelic could not draw conclusions about the nationality of a Dari speaking applicant. It would seem to me to follow that an applicant is entitled to know, at the very least, what language the analyst is qualified in. This information was provided to Mr Hussain but not to this applicant.

15. This applicant through his advisers also requested a copy of the materials provided to the analyst. This was not forthcoming. The research document prepared by Eades et al makes reference to cases where applicants have obtained their own analyses and submitted them as evidence either to delegates or Tribunals. It is beyond doubt that the fairest way of assessing the value of an analyst's report would be to submit the same recording to another analyst. In this way there could be no argument that an applicant had doctored his method of speech for the analysis that was being conducted on his own behalf. The fact that the tape was not provided meant that the applicant did not have an opportunity to submit the tape to an independent analyst who might have been able to refute the findings of the Eqvator employees. In discussing the requirement to provide particulars the court in Re Minister for Immigration v Al Shamry (2001) 110 FCR 27 stated at [39]:

"...the section requires the RRT to provide the applicant with "particulars of any information" that the RRT considers would form part of its reason for refusing the application for review, to explain to the applicant why that information is relevant to the review and to invite a response to it. Thus s.424A enacts a basic principle of the common law rules of natural justice that a person whose interests are likely to be affected by an exercise of power to be given an opportunity to deal with relevant matters adverse to his or her interests that the repository of the power proposes to take into account in deciding upon its exercise: see Minister for Immigration and Multicultural Affairs; Re; Ex parte Miah (2001) 179 ALR 238 at 269 per McHugh J."

16. The provision to a party affected of the raw data from which an analysis is to be made is, to my mind, already accepted as a natural justice requirement. I commented upon this in Curacel International Pty Ltd ACN 058 691 571 v Secretary, Department of Health And Aged Care [2002] FMCA 15 at [73]:

"It is also noteworthy that the provision of samples for testing is a common occurrence when an individual's liberty or reputation or employment are impugned by analysis."

I cannot see what the difference is with a tape recording. I note that the Tribunal provides an applicant with a tape recording of the hearing which allows an applicant to raise issues concerning the conduct of the Tribunal.

17. Whilst I accept that a Tribunal hearing is far removed from a criminal trial some assistance in a decision upon what constitutes a fair hearing as required by s.353 of the Migration Act can be obtained from decisions within the criminal jurisdiction. In R v Reeves (1994) 121 FLR 393 at 411 Gallop J discusses the principles behind the grant of permanent stay of prosecution where evidence has been destroyed through no fault of the accused. His Honour accepts the dicta expressed in Jago v District Court (NSW) (1989) 168 CLR 23 and Barton v The Queen (1980) 147 CLR 75 that the defect justifying such a stay must be fundamental, go to the root of the trial and be of such a nature that nothing the trial judge can do will relieve against its unfair consequences. Gallop J then referred to Holmden v Bitar (1987) 47 SASR 509 and R v Lord [1983] Crim LR 191 as examples of cases where destruction of evidence before the accused had an opportunity to test it rendered the trial an abuse of process. Gallop J adopted the reasoning in those cases to hold that the trial of Reeves should be permanently stayed for the same reasons. These cases reinforce the submission that a party against whom it is sought to prove a matter by the use of material that can be tested, should have the opportunity to himself submit the material to analysis whether scientific or expert. Failure to provide the opportunity will amount to unfairness going to jurisdiction.

18. I am of the view that the requirement of s.424A to provide "particulars of any information the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review"; would include providing an applicant who requested it with such a tape.

I think it would also include providing an applicant with particulars of the qualifications of the person who undertook the analysis. I most certainly believe that the requirement would extend to a copy of the report itself. None of those things can be proved to have been provided. Reasonable requests were discussed in the recent judgment of French J in WAID v Minister for Immigration [2003] FCA 220 where His Honour referred to Minister for Immigration v Bhardwaj (2002) 187 ALR 117. In this case the court held that a failure to accede to a reasonable request for an adjournment could constitute procedural unfairness. At [40] in the joint judgment of Gaudron and Gummow JJ:

"Procedural fairness, which is one aspect of the rules of natural justice, requires that a person who may be affected by a decision be informed of the case against him or her and that he or she be given an opportunity to answer it. The opportunity to answer must be a reasonable opportunity. Thus, a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness."

Further, in NAFF of 2002 v Minister for Immigration [2003] FCAFC 52 at [36] the court emphasises a passage from the recent High Court decision in Re Minister for Immigration; Ex parte Lam (2003) 195 ALR 502 where Gleeson J discussed the general notion of fairness:

"Gleeson CJ stated (at [34]) that "what must be demonstrated is unfairness, not merely departure from a representation" and that the ultimate question is whether there has been unfairness. His Honour continued (at [37]):

"In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness. Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice."

19. In these circumstances I believe that the Tribunal failed to accord the applicant natural justice. The task for this court is to establish firstly, whether the applicant was denied natural justice and secondly, whether despite the non-observance of this requirement it could not possibly have produced a different result. This is a two-step process which has been discussed in NAFF at [31]:

"The questions which arise in the present case concern the content of the requirements of natural justice in the particular factual circumstances of the case, and the question whether those requirements were met. Obviously these two issues are interrelated: definition of the requirements will serve to determine whether or not there has been a non-observance of the requirements of natural justice. Once a non-observance of those requirements is established, it is only if it is positively concluded that observance of the requirements "could not possibly have produced a different result" that the decision impugned will be allowed to stand: cf Stead v State Government Insurance Commission (1986) 161 CLR 141 ("Stead") at 145 per Mason, Wilson, Brennan, Deane and Dawson JJ; Aala at 88 per Gleeson CJ, 116-117 per Gaudron and Gummow JJ, 122 per McHugh J, 130-131 per Kirby J, 154 per Callinan J."

20. It should be clear from these reasons that this is not a finding that the use of linguistic reports constitutes a form of jurisdictional error. To the contrary, I accept that these reports are evidence available to the Tribunal (See Karar Hussain v Minister for Immigration [2002] FCA 793; Odhiambo v Minister for Immigration [2001] FCA 1092; and Martizi v Minister for Immigration [2001] FCA 1112). But evidence that is not permitted to be tested by a party ceases to be evidence, it becomes conclusive fact, a status which the Migration Act does not confer upon it.

21. I would have accepted Mr Allanson's submission that the preferring of the linguistic report over the evidence of the applicant's migration agent was, if it was an error at all, an error within jurisdiction. I would also have found, contrary to the applicant's submissions, that the mere raising of a doubt by the applicant's agent in the form of her expert opinion on the applicant's dialect did not put the Tribunal under a duty to enquire. This duty is discussed in NACC v Minister for Immigration [2002] FCA 333 and Azzi v Minister for Immigration [2002] FCA 24. In the latter case, Allsop J discusses this duty at [111] - [112]:

"In Ahmed v Minister for Immigration v Multicultural Affairs [2001] FCA 506, Hely J held (in relation to the argument that it was open to the RRT to take a variety of additional steps to assess the applicant's claims), that the cases there relied upon in support of the existence of a reviewable error arising from breach of a duty to consider making further enquiries, which - save for Sellamuthu - were the same cases referred to by Mr Leeming, "are outside the mainstream of decisions of this Court on that question" so that if the RRT failed to consider whether to undertake further enquiries into the applicant's claims, that would not amount to reviewable error (at [39]). Hely J's decision has since been followed: see Hernandez v Minister for Immigration and Multicultural Affairs [2001] FCA 725, [16]; see also W41/01A v Minister for Immigration & Multicultural Affairs [2001] FCA 742 at [19]-[23] and the authorities cited therein; and Raheem v Minister for Immigration and Multicultural Affairs [2001] FCA 942, [23].

It may be, notwithstanding prevailing authority, that a duty to enquire may exist or be seen to arise in certain circumstances, but these are understood as being exceptional or rare: Prasad, supra; Minister for Immigration & Multicultural Affairs v Amani [1999] FCA 1040; W41/01A, supra; Raheem, supra. Before the High Court's decision in Eshetu it had been said by the Full Court of this Court in Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 in relation to s 420 that any such duty that might exist would arise only in rare cases; cf McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Cassim (2000) 175 ALR 209 at [13]."

But all these exercises of the Tribunal's jurisdiction referred to above are exercises that come after the provision to the applicant of procedural fairness in the form of an opportunity to challenge the evidence that was used so damningly against him.

22. I am satisfied that this is a case where I could not say that the observation of the requirements of natural justice would not have produced a different result. The Tribunal's decision was based solely on its interpretation of the applicant's nationality. If that interpretation changes as a result of new evidence then the Tribunal will have to look at other factors some of which it considered but upon which it made no determination.

23. I declare the decision of the Tribunal to be invalid and I refer the matter back to the Tribunal differently constituted to be considered according to law. In order to effect such consideration it will be necessary for the respondent to provide the applicant with a copy of the tape sent to Eqvator and also provide the applicant with details of the qualifications of the analyst who provided the report upon which the Tribunal relied. The respondent must pay the applicant's costs which I assess in the sum of $4,250.00 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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